Jochims v. National Labor Relations Bd.

• Decision Date: 23 March 2007
• Docket Number: No. 05-1455.,05-1455.
• Parties: Lisa JOCHIMS, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Wilshire at Lakewood, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

480 F.3d 1161

Lisa JOCHIMS, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Wilshire at Lakewood, Intervenor.

No. 05-1455.

United States Court of Appeals, District of Columbia Circuit.

Argued January 22, 2007.

Decided March 23, 2007.

On Petition for Review of an Order of the National Labor Relations Board.

Harold Craig Becker argued the cause and filed the briefs for petitioner.

Daniel A. Blitz, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Ronald E. Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Meredith L. Jason, Supervisory Attorney.

Jeffrey M. Place was on the brief for intervenor.

Before: ROGERS and KAVANAUGH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge.

The petition for review in this case was filed by Lisa Jochims, a registered nurse who was formerly employed by Wilshire at Lakewood ("Wilshire"), a long-term care facility. In 2002, petitioner filed an unfair labor practice charge with the National Labor Relations Board ("NLRB" or "Board"), asserting that she had been unlawfully discharged by Wilshire for engaging in protected activities. The Board's General Counsel issued a complaint, alleging that Wilshire's dismissal of petitioner was an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(a)(1). The matter was then heard by an Administrative Law Judge ("ALJ"), who concluded that petitioner was a "supervisor" within the meaning of § 2(11) of the Act, 29 U.S.C. § 152(11), and therefore unprotected by the Act. On September 30, 2004, the Board issued its initial decision, holding that Jochims was not a supervisor and that her discharge violated the Act. Wilshire at Lakewood, 343 N.L.R.B. No. 23, 2004 WL 2235906 (Sept. 30, 2004) ("Initial Decision"), reprinted in Deferred Appendix ("App.") at 263-79. On September 30, 2005, after reconsideration, the Board issued a Supplemental Decision and Order, holding that Jochims was a supervisor under the Act and, therefore, that her dismissal was not an unfair labor practice. Wilshire at Lakewood, 345 N.L.R.B. No. 80, 2005 WL 2451996 (Sept. 30, 2005) ("Supplemental Decision"), reprinted in App. at 280-86. Jochims then petitioned for review in this court.

In concluding that petitioner was a supervisor, the Board first explained that it was "unnecessary to pass" on the question of whether Jochims had the authority "responsibly to direct" employees, 29 U.S.C. § 152(11), pursuant to the Court's decision in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001). Rather, the Board found that petitioner "possessed supervisory authority apart from the issue of her responsible direction of employees." Supplemental Decision, 345 N.L.R.B. No. 80, slip op. at 1. The Board then cited four factors upon which it rested its finding that petitioner was a supervisor: (1) petitioner completed written reports concerning employee misconduct; (2) petitioner sent two employees home for gross misconduct after receiving directions from management to do so; (3) petitioner permitted two employees to leave work early to attend to family emergencies; and (4) petitioner completed part of one evaluation of a probationary employee. As petitioner points out, there are blatant flaws in the Board's decision. First, "Jochims' completion of the written reports of misconduct was not itself discipline." Petitioner's Br. at 6. Furthermore, "[t]he Board expressly found that Jochims sent two employee[s] home after observing obvious, gross misconduct, only after being instructed to do so by [management.]" Id. at 6-7. Moreover Jochims did not exercise independent judgment when she permitted two employees to leave work early when their children were involved in medical emergencies. Id. at 7. And, finally, there is "a long line of prior Board precedent holding that evaluation alone, not leading automatically to reward or punishment, is not evidence of supervisory status." Id. at 8. The record clearly supports petitioner's contentions.

The Board's brief to this court argues that, because Wilshire followed a "Progressive Disciplinary Action" system, codified in an "Employee Handbook," petitioner's written reports on employee misconduct must have constituted effective recommendations of discipline, and that this demonstrates that she was a supervisor. This argument is nothing more than post hoc rationalization. The Board never purported to rest on any alleged system of "progressive discipline" in holding that petitioner was a supervisor, and the Employee Handbook is never even mentioned in the Board's Supplemental Decision.

A Board decision must be set aside when, as here, it departs from established precedent and the judgment is not supported by substantial evidence. On the record here, it is plain that, in holding that petitioner was a supervisor under the Act, the Board completely deviated from its own precedent and issued a judgment that is devoid of substantial evidence. We therefore reverse the Board's Supplemental Decision, grant the petition for review, and remand the case to the Board.

I. BACKGROUND

A. The Facts

The facts have been thoroughly detailed in the Supplemental Decision and Initial Decision, so there is no reason for us to repeat all of the facts here. Rather, we will merely recite notable portions of the Board's statement of facts and briefly summarize other facts relevant to our disposition of the petition for review. The parties do not dispute that, if petitioner was an "employee," rather than a "supervisor," Wilshire undeniably committed an unfair labor practice in dismissing her for engaging in protected activities. Initial Decision, 343 N.L.R.B. No. 23, slip op. at 1 n. 4. Therefore, our principal focus here is on the facts that determine whether the Board erred in holding that petitioner was a supervisor.

* * * * * *

Wilshire is a long-term care nursing home providing residential and skilled nursing care to its residents and patients. During the period relevant to this case, Wilshire employed between 110 and 120 employees, who were variously assigned to work in four halls. The nursing staff included charge nurses, registered nurses ("RNs"), licensed practical nurses ("LPNs"), and certified nursing assistants ("CNAs"). CNAs typically assisted patients with the basic needs of daily living such as eating, bathing, dressing, and assistance with the toilet. RNs and LPNs, who are highly skilled professional nurses, were responsible for providing more advanced and specialized care. And charge nurses, typically RNs or LPNs, carried the responsibility for the oversight of the CNAs assigned to a particular hall and the overall care of the patients who were in residence.

Wilshire hired petitioner in August 1999. She worked at the nursing home facility until February 2002, when Wilshire fired her for circulating a petition protesting the employer's proposed plan for "role reversal" assignments. Under the proposed plan, RNs and LPNs would occasionally perform the duties of CNAs. Before her dismissal [t]he record shows that Jochims, the [employer's] "weekend supervisor," was primarily involved with patient care and interaction with patients' families. In addition, Jochims attended management meetings and was paid more than the [employer's] charge nurses. Although Jochims was the highest ranking employee at the facility on the weekend, the [employer] provided the weekend staff with the telephone numbers of various managers to contact in case of an emergency.

The record further shows that Jochims would check to see whether employees did their tasks correctly, and could correct employees if they did something wrong. If there was a gross infraction of residential care, Jochims — as well as other nursing employees not alleged to be supervisors — could write up the employee on a disciplinary form. Jochims decided whether to document an employee's infraction on the disciplinary form. If she did so, the completed disciplinary form would be subsequently reviewed by the [employer's] managerial officials — Administrator Jim Harralson or Director of Nursing Wendy Gibson. They would determine whether the infraction warranted disciplinary action.

On two occasions, Jochims made an oral report that an employee was unfit for work. On one occasion, Jochims called the [employer's] administrator, Jim Harralson, and reported that a licensed practical nurse (LPN) had come to work intoxicated. On the other occasion, Jochims told the [employer's] assistant director of nursing, Sheila Littrell, that a certified nursing assistant (CNA) was taking extended breaks and was failing to respond to patient call lights. In both instances, Jochims was instructed to send the employee home.

In addition, on two occasions, employees came to Jochims and expressed a need to leave work early because of severe health problems experienced by their young children. On both occasions, Jochims — without first checking with her superiors — told the employees to leave work early.

The record also reveals that, on one occasion, Jochims prepared a performance evaluation of one employee. In this particular circumstance, the [employer's] director of nursing, Wendy Gibson, asked Jochims to fill out an employee's 90-day evaluation, because Gibson was not familiar with that employee. Jochims complied with Gibson's directive, and filled out the portions of the evaluation form that reflected her own observations of that employee. Jochims also signed the evaluation.

Initial Decision, 343 N.L.R.B. No. 23, slip op. at 2. The Board did not modify these findings in its Supplemental Decision.

On February 1, 2002, responding to complaints by CNAs who were assigned to work on weekends, Gibson and...